Puzon Martin Jr Sulio v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1287/2019

[2024] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1287 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.By Form 86 dated 14 May 2019, the applicant applied for leave to apply for judicial review of the decision dated 14 March 2019. He did not specify what decision. The Director of Immigration’s Decision is dated 22 February 2019 (“the Director’s Decision”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision is dated 21 August 2019 (“the Board’s Decision”). Form 86 was issued even before the Board’s Decision.

2.In order to clarify with the applicant, a hearing was fixed for him to appear before the Court on 24 April 2024. Due notice has been given to him. However, he was absent without prior notice to the Court.

3.In the circumstances, I shall assume that the applicant issued Form 86, pending the Board’s Decision. As the Board’s Decision has now been issued, his application is for judicial review of the Board’s Decision.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the decision in respect of which relief is sought is the Board’s Decision and the Director is the interested party.

The applicant

5.The applicant is a national of the Philippines. He entered Hong Kong on 14 July 2017 as a visitor and was permitted to stay until 28 July 2017. However, he did not depart and had overstayed. On 21 August 2018, he surrendered to the Immigration Department. On 12 September 2018, he lodged a non-refoulement claim. His claim was on the basis that, if refouled, he would be harmed or killed by the creditor.

6.In short, the applicant and his friend Allan borrowed a loan to set up his second hand motor cycle business in March 2017. However, a few days later, Allan disappeared with the money. On 23 March 2017, the creditor visited the applicant’s house for repayment. He assaulted the applicant and threatened him with a gun. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 22 February 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the conducts of the applicant and the creditor suggested that there was no real or substantial risk of harm [12]-[13]; (ii) state protection would be available to him [14]-[16]; and (iii) internal relocation was a viable option [17]-[18]. In particular, in the Director’s Decision, the Director found:

“13. Your problem with the Creditor is private and personal in nature and in no way an official matter. …There is no reasonable likelihood that your Creditor would mobilize affluent resources to search for you throughout the country. …Your problem with your Creditor is assessed to be localized. Your claimed perceived future risk is solely based on your speculation. … Your explanation on the belated lodgment of your claim is not acceptable if you are in need of protection. Your behaviour is not suggesting you are in contemplation that you are in imminent danger in the Philippines if you are returned.

14. The availability of state protection further lowers or negates the level of risk.

18. Being an abled-bodied adult with working experience, it is not unduly harsh for you to relocate to other areas in the Philippines other than you [sic] home area to avoid your problem.”

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board. On 12 July 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [35].

10.The Board recapped the applicant’s case [39]-[60] and his oral testimonies [61]-[89]. Having considered the evidence, the Board accepted the applicant’s core claims. During the hearing, the Board inquired about the possibility of relocating to other part of the country. The applicant stated that it would be possible for him to move but he would be unable to support his children if he had to keep hiding [88].

11.The Board found that the applicant’s claims were true [93] and proceeded to consider the possibility of internal relocation [94]. It found that internal relocation was available to the applicant and his concern of not being able to support his children was not sufficient to warrant a non-refoulement protection [95]-[102]. As a result, the Board rejected the applicant’s claim for non-refoulement protection and dismissed his appeal.

The grounds in support of the applicant’s application

12.In his affidavit in support of this application, the applicant only exhibited the Director’s Decision without raising any specific ground.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Board had considered the applicant’s case, and for the reason of internal relocation being viable, upheld the Director’s Decision.

17.The applicant has raised no valid reasons to challenge the Board’s Decision.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.Therefore, I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 31^st day of May 2024.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1